Remarks given by Dr. Mohamed Y. Mattar on “Preventing Trafficking in Persons Crimes through Comprehensive Legislation” to American Cultural Center and American Institute in Taiwan, on July 19, 2007
Allow me first to thank you for organizing this forum, Mark Taylor from the US TIP Office, the American Cultural Center and the American Cultural Institute in Taiwan, to discuss what I believe is the most important measure to combat trafficking, and that is legislation.
And the legislative map has changed significantly since the passage of the UN Protocol on Trafficking and the Trafficking Victims Protection Act in 2000. Here is the legal map of the 164 countries that were reported on in the US State Department 2007 Trafficking in Persons Report: And these are the two legislative approaches. Some countries go for a comprehensive law, which means the 5 P’s that I hope you got a copy of in Chinese, Prevention, Protection, Provision, Prosecution and Participation. Some other countries go for a more limited approach, what we call the criminal law approach, providing for trafficking in persons as a specific offense. I believe this is what Taiwan is doing. I am referring here to Article 296-1. 296 goes after “anyone who makes others slaves or…like a slave”. Punishment is between one and seven years. 296-1 goes after “anyone who engages in human trafficking”. Punishment is for a minimum of 5 years. And of course, the Article allows for an enhanced penalty in cases of aggravated circumstances, which include: So, where is 296 in comparative law? How is it comparable to other legislation? As you always hear me saying, there is no model legislation. But there are elements of model legislation that all of us should agree to. Although every legal system would apply these elements differently. The first element is to recognize trafficking as a specific offense that warrants serious penalties. Specific offense that is different from slavery because trafficking is not “slavery”. That is why we say it is a form of “modern-day slavery”, because it does not require ownership, buying and selling, it only requires control. Specific offense that covers all forms of trafficking: sex, labor, human organs or kidney transplants, pornography and child pornography on the Internet, sex tourism, male order brides, adoption, child labor, begging, transactional marriages, That is why I like the definition of trafficking in one of the most recent laws on trafficking, the Israeli law of October 29th, 2006. It defines trafficking simply as a “transaction in persons”. Specific offense does not require proof of any illegal means. You do not have to prove force. You do not have to prove physical force. You do not have to prove psychological force. Because consent is irrelevant in all cases of trafficking: because all cases of trafficking involve a vulnerable victim, and you all know Article 3 of the UN Trafficking Protocol defines “illegal means” to include taking advantage of a position of vulnerability; and no one can argue, here or at your end, that a victim of trafficking would consent to exploitation, and there is no trafficking in the absence of exploitation.
So if you are defining trafficking, please do not refer to illegal means and make it a crime with or without consent of the victim. Specific offense that warrants a serious penalty, as you know the UN Convention on Transnational Organized Crime talks about four or more years. The European Framework decision of July 2002 talks about 8 or more years. The Trafficking Victims Protection Act talks about 20. What is important is to increase the penalty in cases of aggravated circumstances, such as trafficking a child under the age of 14 is life imprisonment here; or transnational trafficking; or trafficking that involves organized criminal activity.
But all this is not enough. Our issue should always be protection. We have to agree to certain principles, including recognition of the trafficked person as a victim who is entitled to basic human rights. To apply this principle you have to recognize the right of the victim to witness protection or safety; privacy; right to be heard in court; right to compensation; right to residency status.
Legal systems address protection differently. Take, for example, right to compensation you may do that through mandatory restitution; or right to file a suit for civil compensation; or right to file a suit for civil compensation; that may include the right to punitive damages; or you use the confiscated assets to compensate the victim; or you establish a special fund.
Five comparative solutions, but the principle is the same. Another principle which is as important is not to punish the victim. I am talking here about trafficking-related offenses Nonetheless, you don’t punish the victim. Not only do not punish her, but compensate her! This is the principle of excuse from liability or immunity from liability. You may require proof of causation between the illegal act and the act of trafficking as the TVPA does. Or you may require duress or coercion as the Council of Europe Convention of May 3rd, 2005 does. Of course, there are other elements. Four of them that I always advocate. There is no time to discuss all of them. But I will refer you to the materials that the Protection Project translated for you in Chinese. They cover the I will stop here so I can allow time for discussion. | 
